On appeal from Superior Court of New Jersey, Law Division, Somerset County, L-330-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 6, 2008

Before Judges Lisa, Reisner, and Alvarez.

This is an appeal from a unanimous jury verdict finding neither defendant negligent. We affirm.

On January 29, 2004, at approximately 6:30 p.m., plaintiff Regina G. Cavaliere (Regina) left the shopping mall operated by defendant Bridgewater Commons Mall, II, LLC (Mall), and headed towards the parking lot. During the early morning hours of the prior day, approximately seven inches of snow had fallen. Regina was wearing an ankle-length coat and black leather dress boots with three-inch heels. She exited through a door, identified at trial as "door number one," and took a couple of steps onto the abutting sidewalk. Her attention was immediately drawn to the yellow lights of the Mall's security vehicle in the parking lot to her right. As she took one more step, her left foot lost traction on what she thought felt like ice, and she fell backwards onto the concrete sidewalk in front of door number one. She heard and felt the bones of her left ankle breaking inside her boot and, after her fall, remained on her back until she was taken to a nearby hospital.

While lying on the sidewalk in front of the entrance, Regina touched a large patch of slippery and wet ice beneath her. She felt that there was "an incline on the sidewalk" and ice on either side of her body. She had not seen ice or snow on the sidewalk when she walked out of the Mall. Regina underwent two surgeries on her injured ankle.

Officer Benjamin Garcia, a Mall security guard, was first to arrive at the scene. Although Garcia refused to appear at trial or at a deposition, he did give a recorded oral statement on June 8, 2004, about the incident. That statement, which was read to the jury, was similar to plaintiff's version of the event except that he did not find "that much" ice on the sidewalk. He described the surface as "wet" and salted. He admitted that there was a "small area" of ice, the size of a small post-it note, but recalled that the area had been entirely covered in salt.

Corporal Brian Redman, the security force's head supervisor on duty at the time of the accident, also responded to the scene. He testified that the concrete sidewalk where Regina fell was "wet," although there was no puddle or standing water. There was salt all over the sidewalk. In fact, he pushed his foot down on the spot where plaintiff fell to test for traction and, in his opinion, "there was plenty of traction. It was just wet." Photographs that he took of the area where Regina fell were shown to the jury.

Officer Juan Ruiz, Jr., also testified. He arrived on the scene after Garcia and Redman. After Regina was taken to the hospital, Ruiz "glanced" at the spot where she fell and saw no ice. He saw salt dispersed evenly over the entire sidewalk and a large wet area. By his estimate, the wet area was "a little more than a foot" in size, but he did not touch it.

Bob Umhoefer, the assistant security director, prepared a formal standardized incident report the morning after plaintiff's fall. Due to medical reasons, Umhoefer was not available for trial. According to the Umhoefer incident report, Ruiz and Redman inspected the site after Regina's fall, and the surface conditions were described as wet with "salt melt." Garcia prepared an initial handwritten incident report as the investigating officer. After Garcia's initial report was incorporated into the Umhoefer incident report, it was discarded.

Pursuant to the Mall's operating procedures, the security officers were to record any affirmative action taken as to snow or ice on pedestrian walkways. No such affirmative action was noted on the day of the accident. Redman's shift report indicated, however, that officers conducted hourly inspections at door number one, although it was not clear whether any inspections had actually been made by other officers. Redman claimed that he made several of the inspections himself.

Thomas Deverin, the Mall's operations manager, was responsible for the building as well as the Mall exterior, including ice and snow removal. Defendant Scanel Design and Development (Scanel) performed large-scale snow and ice removal during the winter of 2003-2004. The Mall contract called for Scanel to clear snow and ice during a snowstorm, using heavy equipment. Deverin would then inspect the parking lots and sidewalks after the storm ended and sign off on the removal operation. Once Deverin signed off, Scanel employees could leave the premises. They were not required to return to inspect or to ensure that the parking lots and sidewalks remained free of snow and ice.

An oral "standing order" required all Mall maintenance staff to conduct inspections of the entrances and put down salt in the event of icing. Five-gallon salt buckets were kept for that purpose near each entrance. Indeed, on the day before plaintiff's fall, a security officer spread salt at door number one and reported it in his written summary for the day. If weather conditions worsened, such as from a sudden refreeze, the Mall would call Scanel to return and reclear the area.

The contract between defendants also called for Scanel to remove snow and ice from the overhangs above entranceways into the Mall. That clause was designed to prevent snow from dripping from the overhangs onto the sidewalks and refreezing, creating a potentially dangerous condition. Deverin testified that he never had any problem with snow on the overhang, or with water dripping, at door number one. He testified that Scanel always cleared snow from the overhangs and sidewalks, and that he would not have signed off on the removal operation if he saw snow on either.

Mark Scanel (Mark) was the on-site supervisor for Scanel's snow removal operations at the Mall. He corroborated Deverin's testimony as to snow removal procedures. He referred to the overhang above door number one as a problem because if snow was not removed, it could slide off the overhang onto the sidewalk like an avalanche. Mark testified, however, that water from melting snow would not drip onto the sidewalk because of the placement of gutters on the overhang. He testified that he did not always automatically remove all snow from overhangs. He would make a subjective analysis of whether future temperatures would cause melting, dripping, and refreezing. If he suspected that such conditions would occur, he would remove all snow.

During the morning hours of the day before Regina's fall, Scanel was still removing snow and ice from the earlier storm. Although Mark could not recall the specifics of the operation, he was "100 percent" sure that the company removed all snow on the overhangs because more than four inches of snow had fallen. Mall personnel signed off on Scanel's work during the afternoon of the day prior to the incident, and Scanel was not called back between that time and Regina's fall.

Plaintiff Bryan J. Cavaliere (Bryan), Regina's husband, testified at his deposition that he went to the Mall between 10:00 and 11:00 a.m. on the day following the accident to check on her vehicle, which had remained in the parking lot. He walked over to door number one to look around and saw a large patch of black ice on the sidewalk. He had no idea when or how the ice had gotten there, or if it was even the same ice that caused Regina's fall, because he was not present when the accident occurred. He said that the ice completely covered the sidewalk and was shaped like an amoeba. There was salt all over the sidewalk, but not on the ice. He saw an orange cone stuck in the middle of the patch. He did not see icicles or dripping water coming from the overhang, but noticed that it was covered by a layer of snow. He did not recall seeing a gutter at the end of the overhang.

During her testimony, Regina described her husband's observations, including the fact that he saw an orange cone stuck in the middle of the patch of ice on the sidewalk in front of the entrance and snow on the overhang. She admitted that she did not mention Bryan's observations regarding the overhang at her deposition and offered as explanation for the omission that she was not specifically asked about it.

At trial, defendants objected to Bryan testifying about his observations, including the orange cone, because they had not been supplied in discovery. Scanel pointed out that during depositions, defendants had specifically asked Regina if she had any information about snow or ice on the sidewalk, to which she responded that she did not. Although the judge permitted defendants to depose Bryan at plaintiffs' expense, she barred him from testifying about the orange cone on the basis that it was a subsequent remedial measure. She did allow Bryan to testify about his observations regarding the ice on the sidewalk and the snow on the overhang.

During the trial, there was a snow and ice storm. Plaintiffs took photographs of door number one, showing snow accumulated on the overhang, and salt and slush on the sidewalk after the parking lots appeared to have been plowed. When plaintiffs' counsel began to ask Deverin about snow removal efforts at the Mall on the prior day, the judge asked for a proffer. Counsel explained that he intended to introduce photographs taken during the trial of the conditions at the Mall in order to impeach Deverin's testimony.

The judge refused to admit the photographs or to allow any questioning as to Scanel's snow removal efforts with regard to the storm that occurred during the trial. She opined that it was irrelevant to compare the snow removal engaged in approximately two years after that which occurred when plaintiff fell. She noted that Deverin had been in court all day when the pictures were taken and, therefore, could not fairly be expected to explain what happened at the Mall. In addition, the judge noted that the use of the photographs would require testimony about the differences between the storm in 2004 and the most recent storm in 2007. Because she ruled that the photographs were inadmissible, she prohibited counsel from questioning Mark Scanel or Deverin about the most recent snow removal, even if the witnesses testified about Scanel's practices and procedures.

I.

Plaintiffs contend first that the trial judge committed reversible error both in the jury instructions given at the end of the trial and in her refusal to grant a new trial based on those allegedly erroneous charges. A proper jury charge is essential to a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002); Navarro v. George Koch & Sons, Inc., 211 N.J. Super. 558, 570 (App. Div.), certif. denied, 107 N.J. 48 (1986). "No party is entitled to have the jury charged in his or her own words. All that is necessary is the charge as a whole be accurate." Mayles v. Wentlejewski, 337 N.J. Super. 466, 471 (App. Div. 2001). Consequently, "an appellate court will not disturb a jury's verdict based on a trial court's instructional error 'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).

Specifically, plaintiffs argue that the judge erred by instructing the jury using Model Jury Charge (Civil), 5.19(B)(2)(b), "Liability of Owner of Commercial Property for Defects, Snow and Ice Accumulation and Other Dangerous Conditions in Abutting Sidewalks" (1999).*fn1 They claim that the judge should have instructed the jury: (1) that actual or constructive notice of the icy sidewalk by the Mall was not required, pursuant to Model Jury Charge (Civil), 5.24B(9), "Notice Not Required When Condition is Caused by Defendant" (2000, rev. 2003),*fn2 and Model Jury Charge (Civil), 5.24B(11), "Notice Not Required When Mode of Operations Creates Danger" (1970);*fn3 and (2) that plaintiff was owed the duty of care of an invitee, pursuant to Model Jury Charge (Civil), 5.24B(5), "Invitee - Defined and General Duty Owed" (1988)*fn4 (hereinafter, "Model Jury Charge (Civil)" will be "Jury Charge").

At trial, plaintiffs objected to the judge's failure to use the various invitee charges in Jury Charge 5.24B and complained about the judge's use of Jury Charge 5.19, calling it the "sidewalk charge for commercial property owners whose . . . property abuts city sidewalks." They claimed that Jury Charge 5.19 was nothing more than "a watered-down version of the true invitee charge." Their position was that a "true invitee" charge should be used because the Mall's sidewalk was not a public sidewalk and because plaintiff had been a true invitee onto that sidewalk. They pointed out that the Mall's sidewalk was no different than its atrium or one of its inside counters. The judge concurred and, relying on Monaco v. Hartz Mountain Corp., 178 N.J. 401, 414-15 (2004), agreed to update her 5.19 charge to include the duty to inspect.

Plaintiffs, however, further argued that the judge had to include Jury Charge 5.24B(9), which states that notice is not required when a condition is caused by defendant. They claimed that the jury did not have to find notice when an owner of a commercial property was aware that its failure to take a certain course of action, i.e., failure to remove snow from an overhang, would lead to the very condition that caused the accident, i.e., ice on the sidewalk. In fact, Deverin and Mark Scanel, the two people with control over door number one's overhang, admitted that "if snow remained on [the overhang] . . . it'll come down and end up on the sidewalk and create an ice condition and . . . people can fall and be hurt." Plaintiffs insisted that the situation here was not analogous to an owner's breach of a general duty to perform reasonable inspections.

The judge disagreed. She refused to give the charge because, in her view, Jury Charge 5.24B(9) is appropriate only when the mode of operation creates the danger. The purportedly dangerous condition resulting from the presence of snow and ice was unrelated to the business conducted at the Mall. She therefore did not consider the mode of operation to have caused the dangerous condition.

The judge did, however, charge that just like other commercial or business property owners, the Mall owners had "the duty to use reasonable care to see to it that the sidewalks abutting the property are reasonably safe for members of the public . . . and does not subject pedestrians to an unreasonable risk of harm." The judge modified Jury Charge 5.19 and instructed the jury that the Mall had an obligation to make inspections of its property including the sidewalk with the frequency that a reasonably prudent person commercial property owner would in the circumstances.

If you find that such a reasonable inspection would have revealed the dangerous condition alleged in this case, then the [Mall] is chargeable with notice of the condition, although it did not actually know about it; that is, that the [Mall] is as much responsible for the condition as if it had actual knowledge of its existence.

The trial judge also defined the test that the jury was to employ; namely, whether the Mall took action that a reasonably prudent person who either knew or should have known of the condition would have taken in that circumstance.

Plaintiffs argue that they are entitled to a new trial because the judge refused to charge the jury that no actual or constructive notice was required as defendants were aware that a hazardous condition would exist if they did not remove snow from the overhangs. Distinguishing Ruiz v. Toys "R" Us, Inc., 269 N.J. Super. 607 (App. Div. 1994), the trial court rejected their argument, stating that there was no evidence that the condition purported to have caused the hazard had ever occurred before. The court found that plaintiffs failed to prove the presence of snow on the overhang before the accident, that there was ever water, snow or ice dripping from the overhang, or that either Deverin or Scanel's testimony that the snow was removed was false. She therefore reasoned that the verdict was not a manifest denial of justice.

We are satisfied that the charge, considered as a whole, adequately conveyed the law and was not likely to confuse or mislead the jury. We concur that in the absence of specific proofs that winter-related problems regularly resulted from the overhang or the gutter at door number one, the factors necessary for application of Ruiz were not present.

In Ruiz, supra, 269 N.J. Super. at 614, defendants had actual knowledge of a dangerous recurring condition. The slip and fall occurred as a result of water accumulations from a leaky roof that the commercial property owner had been aware of for some time. Ibid. In this case, plaintiffs failed to establish any evidence of ice or water dripping from the overhang at door number one prior to the accident or at the time of the accident. There were no specific proofs establishing that door number one had ever been a problem. This is not a Ruiz situation. Absent proof of a dangerous condition that occurred in the past at door number one, or that there was anything inherently dangerous about the sidewalk, the overhang, or the door, the judge's instruction to the jury requiring either actual or constructive notice was proper.

Nor is this a mode of operation case, such as those in which foods fall onto the floor of a supermarket, creating a hazardous condition, Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 428 (1966) (slip and fall on string bean on floor of produce aisle), or sticky substances are found on a restaurant floor, Bozza v. Vornado, Inc. 42 N.J. 355, 358 (1964) (fall on chocolate colored substance). Plaintiffs failed to establish any facts sufficient to warrant an inference of negligence.

Plaintiffs also claim that the court erred by not giving Jury Charge 5.24B(5). The language of 5.19(B)(2)(b) and of 5.24B(5) explains the duty of care in the same manner, "reasonable care" to render property safe. Therefore, there would have been no difference in the jury's consideration of the evidence presented to them if 5.24B(5) had been given.

II.

Plaintiffs also contend that the court erred by dismissing their claim for punitive damages pursuant to the Punitive Damages Act, N.J.S.A. 2A:15-5.9 to -5.17 (PDA). Their claim is grounded on the Mall's failure to inspect entranceways hourly, despite Redman's creation of a post-accident report, which indicated that such inspections had occurred, and on the destruction of Garcia's handwritten incident report.

Plaintiffs did not prove that the harm suffered by Regina was the result of actual malice or wanton and willful conduct by the Mall in regard to its snow and ice removal. Under the PDA, plaintiffs must demonstrate either actual malice or that defendant acted with willful and wanton disregard. N.J.S.A. 2A:15-5.12. "Actual malice" is defined by the PDA as "an intentional wrongdoing in the sense of an evil-minded act," while "wanton and willful disregard" is defined as "a deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such act or omission." N.J.S.A. 2A:15-5.10. This was simply a negligence case.

Furthermore, plaintiffs never moved to amend their complaint to add a claim for fraudulent concealment of evidence when they learned at trial that Garcia's handwritten report had been destroyed. Without such a claim, the Mall cannot be held liable for punitive damages. See Viviano v. CBS, Inc., 251 N.J. Super. 113, 118-21, 130 (App. Div. 1991), certif. denied, 127 N.J. 565 (1992).

III.

For the first time on appeal, plaintiffs contend that they were prejudiced because defendants destroyed or concealed Garcia's report. The Mall asserts that plaintiffs were informed in discovery about the manner in which it creates incident reports. Plaintiffs were provided with a copy of the database report, into which the report made by Garcia was incorporated. Garcia's interview was read to the jury, and the jury saw a photograph taken on the night of the incident and heard about the location of the slip and fall from other witnesses. They also heard testimony that the Mall security officers usually discarded their written reports after a formal report was created by a supervisor, testimony regarding Umhoefer's report, and testimony from Redman that Garcia's handwritten report probably should not have been discarded.

Clearly, the absence of Garcia's handwritten incident report was not "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see State v. Macon, 57 N.J. 325, 336 (1971) (holding that possibility of injustice must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached"). Because this argument was not raised at trial and the absence of the report was not clearly capable of producing an unjust result, the plain error standard has not been met. R. 2:10-2. We find no merit to this contention.

IV.

We also concur with the trial judge that photographs of the snow and ice storm that occurred during the trial should not have been admitted into evidence. According to N.J.R.E. 401, "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." In determining whether evidence is relevant, the inquiry should focus upon "'the logical connection between the proffered evidence and a fact in issue.'" Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). "The central inquiry in determining relevancy is whether the evidence offered renders the desired inference more probable than it would be without the evidence." Hagopian v. Fuchs, 66 N.J. Super. 374, 384 (App. Div. 1961). In our opinion, the photographs were not relevant to the issues and were correctly excluded. Deverin had been in court during the day on which they were taken, and, as a result, they could not be used to impeach his testimony that he never signed off on a snow removal job until all snow was removed from the overhangs.

Even if the photographs were marginally relevant, they were properly excluded due to their potential to create confusion. Given the lapse in time and possible changes in practice over the three-year period since the accident occurred, the potential for confusion was great. According to N.J.R.E. 403, "Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." Trial courts are accorded broad discretion in making such determinations. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).

The trial judge is in the best position to engage in this balancing process. Schaefer v. Cedar Fair, 348 N.J. Super. 223, 239-40 (App. Div. 2002). In this case, the admission of the testimony about snow removal at the Mall during the trial would have required the jury to hear extended testimony on the differences between the two storms, changes to personnel, equipment, removal procedures, and the like. Any probative value that the 2007 photographs may have had was substantially outweighed by the potential for prejudice.

V.

Plaintiffs also contend that the judge erred when she precluded Bryan from testifying as to the orange cone that he saw the day after Regina's accident. Plaintiffs' counsel proffered that after being shown a photograph of the scene, Bryan would testify that the cone was in the same place as where Regina fell. The judge found Bryan's observations of the cone inadmissible as evidence of a subsequent remedial measure.

N.J.R.E. 407 specifies that "[e]vidence of remedial measures taken after an event is not admissible to prove that the event was caused by negligence or culpable conduct. However, evidence of such subsequent remedial conduct may be admitted as to other issues." Therefore, "where such evidence is offered for relevant purposes other than negligence or culpable conduct, it is admissible." Brown v. Brown, 86 N.J. 565, 581 (1981). If, however, the evidence of remedial repairs is unrelated to a fact in controversy other than the negligence or culpable conduct of a person at a particular time, then it should not be admitted. Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129, 147-48 (App. Div. 1994), aff'd o.b., 143 N.J. 141 (1996). Moreover, even if evidence of the subsequent remedial conduct is relevant to a fact in issue, the trial court may exclude it under N.J.R.E. 403 if its probative value is outweighed by its prejudicial effect. Id. at 148.

Plaintiffs sought to present evidence as to the placement of the cone to prove the existence of a patch of ice at the precise location and time of the accident. Bryan obviously could not testify as to how long the ice that he saw on the sidewalk had been there or how it got there. He could not even testify that it was located where his wife fell. Therefore, the use of the orange cone for the proffered purpose of making his testimony more credible would have been impermissible. Even if the claimed purpose of bolstering Bryan's credibility was proper, the real purpose for the admission of the testimony was to present evidence of remedial repair. The presence of the cone does not make Bryan's testimony any more credible than it would have been without it. Exclusion of this evidence was proper.

Affirmed.

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